California’s 120-day trust contest deadline under Probate Code Section 16061.8 begins running when the trustee properly serves the Section 16061.7 notice. But what happens when the challenger did not and could not have known that they had grounds for a contest within the 120-day period after receiving the notice?
The discovery rule is an equitable doctrine that tolls limitation periods when the plaintiff could not reasonably have discovered the existence of their claim through the exercise of due diligence. Understanding when the discovery rule applies to California trust contest deadlines, what courts have required to invoke it successfully, and how to document the basis for a discovery rule tolling argument gives potential challengers whose 120-day period has apparently expired a framework for evaluating whether their contest right has truly been lost.
What the Discovery Rule Requires in California Trust Cases
The discovery rule in California tolls the running of a limitation period until the plaintiff discovered, or through the exercise of reasonable diligence should have discovered, the facts constituting the cause of action. In the trust contest context, this means that the 120-day period should not begin running, or should be tolled once it starts running, when the potential challenger did not know and had no reasonable way to discover that the trust had been changed in ways that gave them grounds for a contest.
The most common situations where this argument arises are cases where the trustee’s Section 16061.7 notice disclosed the fact that the trust was irrevocable but did not include a copy of the trust document, and where the trust document’s contents, including the specific provisions that were changed to the challenger’s detriment, were not known to the challenger until after the 120-day period had already run.
The Fraudulent Concealment Variant
A closely related doctrine is fraudulent concealment tolling, which applies when the trustee or the person who benefited from the estate plan change actively concealed the facts that would give the challenger grounds for a contest. When the trustee represented that the trust’s terms were substantially the same as before the settlor’s death, failed to provide the trust document to a person who had a statutory right to receive it, or took other affirmative steps to prevent the challenger from learning of the trust changes before the 120-day period expired, the fraudulent concealment doctrine may toll the period beyond the point where the discovery rule alone would.
The distinction between the two doctrines matters because fraudulent concealment requires evidence of the trustee’s active deception rather than simply the challenger’s lack of knowledge, but it also provides tolling in circumstances where the discovery rule might not because the trustee’s concealment made reasonable discovery impossible.
The Limits of Equitable Tolling in Trust Cases
California courts have not uniformly accepted equitable tolling arguments in trust contest cases, and there is genuine uncertainty about the extent to which equitable doctrines can override the specific statutory deadline of Probate Code Section 16061.8. Some courts have treated the 120-day deadline as a jurisdictional bar that cannot be tolled by equitable arguments, while others have applied discovery rule and fraudulent concealment tolling in specific circumstances.
The law in this area continues to develop, and the strength of an equitable tolling argument depends heavily on the specific facts of the challenger’s situation and the specific basis for claiming that the deadline should not run as written. Consulting with experienced counsel as soon as possible after learning of potential grounds for a trust contest is always the most prudent approach. The California Legislature’s Probate Code Section 16061.8 governs the deadline. Working with experienced attorneys who handle trust contests after a settlor’s death gives potential challengers the complete tolling analysis their specific situation requires.
